Opinion
695.3 KA 16-00800
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Robert GREEN, Defendant-appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), AND HODGSON RUSS LLP, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), AND HODGSON RUSS LLP, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We previously held this case, reserved decision, and remitted the matter to Supreme Court for a determination whether the police officer who initiated a traffic stop of the vehicle in which defendant was a passenger "possessed the requisite justification to conduct a search of defendant" ( People v. Green , 173 A.D.3d 1690, 1692, 102 N.Y.S.3d 380 [4th Dept. 2019] ). Upon remittal, the court determined that the officer had probable cause to search defendant, and that defendant's flight from the officer and subsequent abandonment of the components of a handgun were not in response to unlawful police conduct. The court therefore concluded that the gun should not be suppressed. We now affirm.
We reject defendant's contention that the officer exceeded his authority in ordering defendant out of the vehicle and in directing him to place his hands against the patrol car. It is well settled that "[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants" ( People v. Cuffie , 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] [internal quotation marks omitted]; see People v. Clanton , 151 A.D.3d 1576, 1577, 57 N.Y.S.3d 775 [4th Dept. 2017] ; People v. Ricks , 145 A.D.3d 1610, 1611, 45 N.Y.S.3d 738 [4th Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017] ). Here, the court credited the testimony of the officer that he smelled fresh, unburned marihuana emanating from the vehicle through its open windows, and that he was trained and experienced in detecting marihuana. We discern no basis to disturb the court's credibility assessment of the officer inasmuch as " ‘[n]othing about the officer['s] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ " ( People v. Williams , 115 A.D.3d 1344, 1345, 982 N.Y.S.2d 675 [4th Dept. 2014] ).
We also reject defendant's contention that the officer was not justified in pursuing him when he fled. It is well settled that "the police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime" ( People v. Martinez , 80 N.Y.2d 444, 446, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992] ; see People v. Rainey , 110 A.D.3d 1464, 1465, 972 N.Y.S.2d 782 [4th Dept. 2013] ). Here, the officer possessed probable cause to search defendant when he fled and, thus, the pursuit of defendant was justified (see generally Martinez , 80 N.Y.2d at 447-448, 591 N.Y.S.2d 823, 606 N.E.2d 951 ). Inasmuch as " ‘the pursuit of ... defendant was justified, the gun he discarded during the pursuit was not subject to suppression as the product of unlawful police conduct’ " ( People v. Walker , 149 A.D.3d 1537, 1538, 52 N.Y.S.3d 782 [4th Dept. 2017], lv denied 30 N.Y.3d 954, 67 N.Y.S.3d 138, 89 N.E.3d 528 [2017] ; see People v. Williams , 120 A.D.3d 1441, 1442, 992 N.Y.S.2d 438 [2d Dept. 2014], lv dismissed 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ).
Finally, the sentence is not unduly harsh or severe.